State ex rel. Cogan v. Indus. Comm.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Cogan v. Indus. Comm., Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
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      South Front Street, Columbus, Ohio 43215, of any typographical or other
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      the opinion is published.


                          SLIP OPINION NO. 

   THE STATE EX REL . COGAN, APPELLEE, v. INDUSTRIAL COMMISSION OF
                                    OHIO, APPELLANT.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
               it may be cited as State ex rel. Cogan v. Indus. Comm.,
                          Slip Opinion No. 

.]
Workers’ compensation—Scheduled-loss compensation—Industrial Commission
        has discretion to use a claimant’s vision as corrected by hard contact lens
        as claimant’s preinjury visual baseline—Court of appeals’ judgment
        granting limited writ and remanding matter to Industrial Commission
        affirmed.
     (No. 2022-1469—Submitted May 16, 2023—Decided October 5, 2023.)
               APPEAL from the Court of Appeals for Franklin County,
                              No. 21AP-9, 

.
                                   __________________
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} Appellee, Kenneth E. Cogan, seeks scheduled-loss compensation
under R.C. 4123.57(B) for the total loss of sight of his right eye. Appellant,
Industrial Commission of Ohio, denied Cogan’s request, concluding that he had not
experienced a postinjury loss of uncorrected vision. Cogan then sought a writ of
mandamus from the Tenth District Court of Appeals. The Tenth District issued a
limited writ and remanded the matter to the commission, ordering it to determine
Cogan’s appropriate preinjury visual baseline and to apply that baseline to his
request for compensation. The commission appealed.
       {¶ 2} At issue is whether the commission has discretion to use a claimant’s
vision as corrected by a hard contact lens as the claimant’s preinjury visual baseline.
See State ex rel. La-Z-Boy Furniture Galleries v. Thomas, 

,

, 

. We answer that question in the affirmative and
affirm the Tenth District’s judgment.
                                I. BACKGROUND
                                 A. Visual Acuity
       {¶ 3} Visual acuity is one of several “vision” components. State ex rel.
Bowman v. Indus. Comm., 

, 

, 

. “Visual acuity ‘describes the ability of the eye to perceive details’ * * * [and
is] usually stated in terms of a Snellen fraction, e.g., 20/20. A Snellen fraction
reports the result of a test in which a patient reads letters from a chart positioned
some distance away.” (Citation omitted.) State ex rel. Beyer v. Autoneum N. Am.,

, 

, 

, ¶ 4, quoting American
Medical Association (“AMA”), Guides to the Evaluation of Permanent Impairment
280 (5th Ed.2001). “The numerator in a 20/xx Snellen fraction represents the
distance in feet from the patient to the chart, and the denominator represents the
distance at which an eye with 20/20 vision would see the smallest letter discerned




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                                January Term, 2023




by the patient.”     

 citing AMA, Guides to the Evaluation of Permanent
Impairment 210 (4th Ed.1993).
       {¶ 4} Visual acuity of 20/200 or less, with correction, is consistent with
“legal blindness” under Ohio law. State ex rel. AutoZone, Inc. v. Indus. Comm.,

, 

, 

, ¶ 22-24, citing R.C.
3304.28(B)(1) (defining “blind” as “[v]ision twenty/two hundred or less in the
better eye with proper correction”) and State ex rel. Nastuik v. Indus. Comm., 

, 

 (1945) (visual acuity of 20/200 or less is the
accepted standard of legal blindness, as reported by the AMA’s Committee on
Visual Economics).
                       B. Factual and Procedural History
       {¶ 5} A childhood injury and subsequent lensectomy (surgical removal of
the natural lens of the eye) left Cogan without a lens in his right eye, a condition
referred to as aphakia. Cogan’s use of a hard contact lens in his right eye corrected
his visual acuity in that eye to 20/40, and he wore eyeglasses, enabling him to
maintain a commercial driver’s license for many years. Without correction, the
visual acuity in Cogan’s right eye was recorded as “count fingers” and “hand
motions” at two to three feet, meaning that Cogan could count fingers or perceive
hand motions when positioned two to three feet away but that he could not see any
letters on the Snellen chart.
       {¶ 6} In October 2009, decades after his childhood injury, Cogan sustained
an industrial injury to his right eye while employed as a wrecker driver. The Bureau
of Workers’ Compensation initially allowed Cogan’s claim for partial detachment
of the right retina with multiple defects, followed by total right retinal detachment,
bullous keratopathy, and photosensitivity of the right eye. The bureau disallowed
his claim for the preexisting condition of aphakia.
       {¶ 7} Cogan underwent three surgical procedures to address the conditions
allowed under his claim: retinal detachment repair in December 2009, corneal




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                                  SUPREME COURT OF OHIO




transplant in July 2011, and corneal transplant with secondary intraocular lens
implantation in December 2019.
         {¶ 8} Cogan filed multiple requests for scheduled-loss compensation under
R.C. 4123.57. Most recently, in March 2020, Cogan requested compensation “for
One Hundred Percent (100%) loss of pre-injury vision in the right eye.” Cogan
relied on various medical and operative reports from his treating physicians and
surgeons that he had submitted with his requests throughout the years. The reports
indicate that Cogan’s uncorrected visual acuity remained unmeasurable by the
Snellen chart following the industrial injury—e.g., “hand motions at three feet”
prior to the retinal-detachment repair and “finger counting at four feet” prior to the
first corneal transplant.       Cogan’s corrected visual acuity, on the other hand,
measured considerably worse than the preinjury measurement of 20/40: after the
second corneal transplant, his best corrected visual acuity measured 20/400. A
handwritten note from his surgeon states that Cogan “does not have usable vision”
in the right eye “because of refractive error.”1
         {¶ 9} The bureau requested an independent file review from Khalil A.
Raffoul, M.D. In Dr. Raffoul’s opinion, the industrial injury did not result in any
significant loss of uncorrected visual acuity, which was recorded as “count fingers
at two feet” both before and after the injury. He concluded, however, that Cogan’s
corrected visual acuity of 20/400 after the industrial injury is worse than the legally
blind 20/200 level and that the change “is related to all of the allowed conditions
including retinal detachment and bullous keratopathy which later required retinal
detachment repair and corneal transplant.”
         {¶ 10} A district hearing officer denied Cogan’s request for scheduled-loss
compensation based on Dr. Raffoul’s report, and a staff hearing officer (“SHO”)
affirmed. The SHO found that R.C. 4123.57(B) requires a comparison between an

1. The surgeon’s note also reads, “Vision today is 20/125,” but it is not apparent whether this is a
corrected or uncorrected measurement or even which eye the note describes.




                                                 4
                                January Term, 2023




injured worker’s preinjury and postinjury uncorrected vision. The SHO noted,
however, that the bureau instructs examining physicians to account for
improvement gained from preinjury surgical correction but not for improvement
gained from preinjury correction through use of eyeglasses or contact lenses.
According to the SHO, this instruction was the basis for the opinion in State ex rel.
Lay-Z-Boy Furniture Galleries v. Thomas, 10th Dist. Franklin No. 08AP-827,

, aff’d sub nom. La-Z-Boy, 

, 

,

, which involved a preinjury corneal transplant. The SHO found
that because Cogan’s preinjury visual acuity could be corrected with a hard contact
lens but that he “most likely did not” have preinjury corrective surgery, the “starting
standard to compare the loss of vision” is Cogan’s preinjury uncorrected vision of
“count fingers at two feet.” Thus, based on Dr. Raffoul’s opinion that Cogan did
not experience a loss of uncorrected visual acuity following the industrial injury,
the SHO denied Cogan’s request for scheduled-loss compensation.                   The
commission denied further administrative review.
       {¶ 11} Cogan filed a mandamus action in the Tenth District Court of
Appeals, contending that the commission had abused its discretion and misapplied
Lay-Z-Boy to the facts of his case. The Tenth District found that the medical
evidence had demonstrated that prior to the industrial injury, Cogan had “usable
vision” in his right eye through use of a hard contact lens but that he was “legally
blind” after the injury.    

, 

. The court
concluded that the commission had interpreted Lay-Z-Boy too narrowly and “pre-
determined that Cogan’s pre-injury uncorrected vision was the appropriate baseline
without accounting for the circumstances unique to that case.” Id. at ¶ 14, 18. The
court granted a limited writ of mandamus and remanded the matter to the
commission with orders to “(1) exercise the discretion afforded to it to determine
the appropriate pre-injury visual baseline, and (2) use the updated pre-injury visual




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baseline to determine whether the medical evidence supports an award for loss of
vision compensation under R.C. 4123.57(B).” Id. at ¶ 19.
       {¶ 12} The commission has appealed.
                             II. LEGAL ANALYSIS
                             A. Mandamus Standard
       {¶ 13} In a direct appeal of a mandamus action originating in a court of
appeals, we review the judgment as if the action had been originally filed here.
State ex rel. Pressley v. Indus. Comm., 

, 

(1967). Cogan is entitled to a writ of mandamus if he shows by clear and
convincing evidence that he has a clear legal right to the requested relief, that the
commission has a clear legal duty to provide it, and that there is no adequate remedy
in the ordinary course of the law. State ex rel. Zarbana Industries, Inc. v. Indus.
Comm., 

, 

, 

. A writ of
mandamus may lie when there is a legal basis to compel the commission to perform
its clear legal duty under the law or when the commission has abused its discretion
in carrying out its duties. State ex rel. Gen. Motors Corp. v. Indus. Comm., 

, 

, 

, ¶ 9. “When an order [of the
commission] is adequately explained and based on some evidence, there is no abuse
of discretion and a reviewing court must not disturb the order.” State ex rel.
Aaron’s, Inc. v. Ohio Bur. of Workers’ Comp., 

, 

,

.
                   B. Scheduled Loss-of-Sight Compensation
       {¶ 14} R.C. 4123.57(B) sets forth rates of compensation for the loss or loss
of use of listed body parts and functions. Scheduled-loss compensation payable to
an injured worker for loss of sight is authorized as follows:


                For the loss of the sight of an eye, one hundred twenty-five
       weeks.




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                                January Term, 2023




               For the permanent partial loss of sight of an eye, the portion
       of one hundred twenty-five weeks as the administrator in each case
       determines, based upon the percentage of vision actually lost as a
       result of the injury or occupational disease, but, in no case shall an
       award of compensation be made for less than twenty-five per cent
       loss of uncorrected vision. “Loss of uncorrected vision” means the
       percentage of vision actually lost as the result of the injury or
       occupational disease.


(Emphasis added.) R.C. 4123.57(B).
       {¶ 15} “R.C. 4123.57(B) contains two provisions authorizing scheduled
loss-of-vision awards: one for the total ‘loss of sight of an eye,’ regardless of the
percentage of vision lost, and another for the ‘permanent partial loss of sight of an
eye,’ which depends on the percentage of vision lost.” Beyer, 

,

, 

, at ¶ 18; see also Nastuik, 

,

 (discussing the General Code antecedent and concluding that
“compensation for total loss of sight is not dependent upon the percentage of the
loss but upon the fact that there was sight which could be lost and was lost
completely through the injury”). Thus, an award for total loss of sight may be
supported by medical evidence of postinjury vision loss that renders a claimant
“legally blind” (i.e., having a corrected visual acuity of 20/200 or less). Beyer at ¶
18; AutoZone, 

, 

, 

, at ¶ 18; see
generally State ex rel. Gen. Elec. Corp. v. Indus. Comm., 

, 2004-
Ohio-5585, 

.
       {¶ 16} In accord with R.C. 4123.57(B), the standard for assessing
postinjury vision is the claimant’s uncorrected vision. La-Z-Boy, 

, 

, 

, at ¶ 16, citing Gen. Elec. at ¶ 12 and State
ex rel. Kroger Co. v. Stover, 

, 

 (1987). Neither




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surgical procedures (e.g., corneal transplants and lens implants) nor optical
prostheses (e.g., eyeglasses and contact lenses) may be considered when
determining a claimant’s postinjury vision. La-Z-Boy at ¶ 16, citing Gen. Elec. at
¶ 20, Kroger at 234, and AutoZone.
       {¶ 17} R.C. 4123.57 does not address the standard for assessing preinjury
vision. We have stated that a more flexible approach may be necessary in certain
circumstances and that the commission therefore should be afforded some
discretion in determining a claimant’s preinjury visual baseline. La-Z-Boy at ¶ 20.
For example, in La-Z-Boy, the claimant had a corneal transplant in his left eye
before injuring that eye in an industrial accident. Before the corneal transplant, the
claimant’s left-eye vision was 20/200; after the transplant, it was 20/50; and after
the industrial injury, it reverted to 20/200. Id. at ¶ 2. We held that the commission
did not abuse its discretion in using the claimant’s 20/50 posttransplant vision rather
than his 20/200 pretransplant vision as the preinjury visual baseline. Id. at ¶ 25.
                       C. Preinjury Corrections to Vision
       {¶ 18} The commission’s essential argument on appeal is that Cogan’s use
of a hard contact lens to correct his preinjury vision is distinguishable from the
corneal transplant surgery the claimant underwent in La-Z-Boy, 

, 

, 

. The Tenth District found no merit to this
argument, agreeing with Cogan’s view that La-Z-Boy is not limited to preinjury
surgical corrections. 

, 

. The Tenth District
held that “even if Cogan cannot demonstrate prior surgical correction to his vision,
the commission still has discretion to consider the unique facts of Cogan’s visual
and medical history.” 

 We agree.
       {¶ 19} First, we have consistently held that there is no legal distinction in
this context between surgical procedures and optical prostheses—they are each
considered a correction to vision, not a restoration of vision. La-Z-Boy at ¶ 16;
Gen. Elec., 

, 

, 

, at ¶ 51; Kroger,




                                          8
                                January Term, 2023

, 

; see also State ex rel. Baker v. Coast to
Coast Manpower, L.L.C., 

, 

, 

,
¶ 20 (lead opinion). It has been suggested that future medical advancements may
justify reclassifying a corneal transplant from corrective to restorative. E.g., Kroger
at 233-234; see Gen. Elec. At ¶ 51; Baker at ¶ 25 (Cupp, J., concurring) (“Perhaps
an appropriate case will come before the [commission] in which that record can be
made, and the commission can evaluate the available evidence on the present state
of medical science in this regard”). However, the commission fails to set forth any
argument that has not previously been considered and rejected by this court, nor
has it cited any record medical evidence that convinces us to overturn the above
precedent.
       {¶ 20} Moreover, we have not limited application of La-Z-Boy to corneal
transplants and have not suggested that the presence of surgical correction is
determinative in these cases. If one type of correction—a corneal transplant—may
be considered when assessing preinjury vision, then another type of correction also
may be considered. Of relevance, in La-Z-Boy, we said:


               The commission is particularly concerned about situations in
       which the preinjury correction significantly predates the industrial
       injury, and we share that concern. Had [the claimant’s] corneal
       transplant occurred in 1985 rather than 2005, for example, he would
       have had 20/50 vision not for just one, but for 21 years prior to his
       industrial accident.      Under [the employer’s] proposal, the
       appropriate measure of [the claimant’s] preinjury vision would be
       the 20/200 vision that [he] had as a child in 1985, rather than the
       20/50 vision that he enjoyed for over two decades. We cannot
       endorse this result.




                                          9
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                  Even when preinjury correction does not significantly
        precede the industrial injury, we can foresee situations in which the
        appropriate measure of preinjury vision could require a more
        flexible approach. Perhaps most obvious is a situation in which
        glasses or contact lenses are used to further correct a surgical
        correction. In this case, the record is silent as to whether [the
        claimant] used glasses to correct his preinjury 20/50 vision to 20/20.
        If he did, his 20/200 vision would seem largely irrelevant since his
        glasses would have been refracted to correct 20/50 vision, not
        20/200.     The presence of what effectively are two corrections
        supports the desirability of affording the commission some
        discretion in establishing a claimant’s preinjury visual baseline.


Id. at ¶ 19-20.
        {¶ 21} It is undisputed that for over 40 years before his industrial injury
rendered him legally blind in his right eye, Cogan had enjoyed 20/40 vision by
using a hard contact lens in that eye, and he wore eyeglasses. This is the type of
circumstance we foresaw in La-Z-Boy: a preinjury correction that significantly
predates the industrial injury and the presence of what effectively are two
corrections.
        {¶ 22} Whether a claimant had preinjury surgical correction is not
determinative under R.C. 4123.57 or our caselaw applying it. The commission
abused its discretion by using Cogan’s uncorrected vision as his preinjury visual
baseline merely because the facts of his case did not align exactly with those in La-
Z-Boy. Cogan has a clear legal right to correct application of the law, which is that,
depending on the circumstances of each case, a claimant’s preinjury visual baseline
may not always be his or her preinjury uncorrected vision.




                                         10
                                 January Term, 2023




                                III. CONCLUSION
          {¶ 23} We uphold the Tenth District’s conclusion that a writ is appropriate
to compel the commission to exercise its discretion, in the first instance, to
determine Cogan’s preinjury visual baseline and to then use that baseline to
determine whether the medical evidence supports an award for total loss of sight
under R.C. 4123.57(B). We therefore affirm the Tenth District Court of Appeals’
judgment granting a limited writ of mandamus remanding this matter to the
commission for further proceedings.
                                                                 Judgment affirmed.
          FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.,
concur.
          KENNEDY, C.J., concurs in judgment only.
                                __________________
          Spears & Marinakis, L.L.C., and David R. Spears, for appellee.
          Dave Yost, Attorney General, and Cindy Albrecht, Assistant Attorney
General, for appellant.
                            ________________________




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